“States’ Rights” and Republicans

William B. Turner

The announcement from Jefferson Beauregard Sessions that he will allow individual federal prosecutors to decide how to handle federal laws that continue to make cultivation and use of marijuana illegal in states that have chosen to make those practices legal, reversing the Obama policy of instructing them to minimize enforcement of those statutes, has caused lots of people to notice what has been blindingly obvious for decades: Republicans only like “states’ rights” when they can deploy the idea to pick on black people.

As usual with Republicans, virtually everything they say about this is at best obfuscatory, if not patently false. To begin, states do not have rights. Say that out loud and one will likely get the response, but the Tenth Amendment guarantees the rights of states! The Tenth Amendment reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Note that the word, “rights,” does not appear here at all. The word, “right,” does appear in several other amendments, so clearly the authors of the Tenth were well familiar with it. If, as “conservatives” claim to wish, we must adhere closely to the text of the Constitution, we cannot point to the Tenth Amendment as vesting any rights in states.

The hue and cry will rise that this statement allows the federal government to trample on everyone’s rights, but of course that is nonsense. The only entities in our system that have rights are individuals, and we retain always the right to resist encroachment on them from any quarter. It is a principle of real conservatism, which again Republican honor only when it suits some other purpose, that government should, as much as possible, operate as closely to the governed as possible. When libertarians and “conservatives” bizarrely started to make common political cause in the Republican Party during the New Deal, they could do so because they share a suspicion of the newly large and powerful federal government that the Democrats werecreating, but their suspicion stemmed from two very different ideas.

The libertarians worried about the ability of this newly powerful federal government to intrude onto the rights of individuals, an entirely valid concern. “Conservatives” worry about having a government that is culturally distant, even from counties in Virginia that abut Washington, D.C., making decisions for their localities. Supreme Court opinions that prohibit official prayer in public schools under the First Amendment would be an obvious example.

Historically, however, U.S. “conservatives” have only really proven willing to defend, in any important sense, this ridiculous idea of “states’ rights” when their real purpose was to discriminate against African Americans. Leaders in South Carolina did dredge up the silly notion of “interposition” or “nullification” – different names for the idea that a state should be able to ignore a federal law if its leaders so chose – in opposition to the tariff in 1828, but they never got much traction that time. The squeals about “states’ rights” only really took hold when the question was whether new states entering the Union should permit slavery or not.

In those days, before major civil rights legislation for the purpose of achieving a degree of formal equality for African Americans, the “conservatives” were mostly Democrats. Regardless, the high point of “states’ rights” agitation in the history of the United States came when several states chose to leave the Union in order to ensure the perpetuation of slavery.

Um, they lost.

The silly “states’ rights” idea recrudesced in the 1950s, again mostly coming from southerners who had not yet decamped to the Republican Party, when the Supreme Court held that racial segregation in public education violated the equal protection clause of the Fourteenth Amendment to the Constitution. Some states threatened to shut down their public schools entirely, which would have been entirely within their power to do had they so chosen. None actually did, but this is an interesting window into the minds of U.S. “conservatives” – better uneducated than desegregated.

These same southern “conservatives” who found federal power so oppressive in service to racial desegregation were perfectly happy with it when it meant jobs and rural electrification during the New Deal.

The battle has continued, waxing and waning, ever since. It hit a high point in 1964, when libertarian Barry Goldwater ran for president against Lyndon Johnson, explicitly opposing the new Civil Rights Act for its supposedly unjustified expansion of federal power in prohibiting racial segregation. He lost badly.

This gets to a key point: no government at any level ever has any“right” to enforce discrimination against its own citizens. Jefferson Beauregard’s new policy may provide an interesting test of the power of states to protect their citizens from marauding federal authorities, but if they protect the right to grow and use marijuana, they will not impose any discrimination on anyone, so “conservatives” don’t like it. In the 1850s and in the 1950s, the substantive “right” the “states’ rights” crowd wanted to vindicate was the “right” to treat African Americans as non citizens, with few or no rights at all. No state ever has any “right” at all to inflict such policy on its citizens.

This should have been obvious already, but just to make the point extra clear, the Fourteenth Amendment states it quite clearly. It reads, in pertinent part, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The body of the original Constitution states flatly that it is “shall be the supreme Law of the Land.”

That alone should put paid to these silly notions of “interposition” and “nullification” and “states’ rights.” The citizens of the original thirteen colonies, which suddenly became states upon ratification of the Constitution, knew that when they voted to ratify.

Still we will hear the cry that this argument makes the states mere nullifies, which is ridiculous. Of course we have well established historical, legal, and political practices that establish the states as important legal and political entities in the United States, and with good reason, and there is no reason to think that will change any time soon.

But the point remains that U.S. “conservatives” only scream about “states’ rights” when they want to discriminate against African Americans.